State v. Brooks

Decision Date24 August 1994
Docket NumberCr. N
Citation520 N.W.2d 796
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Terry Darnell BROOKS, Defendant and Appellant. o. 930286.
CourtNorth Dakota Supreme Court

Stephen R. Dawson, Asst. State's Atty. (argued), Fargo, for plaintiff and appellee.

Bruce D. Johnson (argued), Fargo, for defendant and appellant.

NEUMANN, Justice.

Terry Darnell Brooks appeals from the verdict finding him guilty of the offense of delivery of a controlled substance, and from the order denying his motion for a new trial. We reverse, holding that the trial court erred in not granting Brooks' motion for a new trial on the grounds that jury misconduct during deliberations tainted the verdict with extraneous prejudicial information.

On August 13, 1993, a jury verdict was returned against Brooks, finding him guilty of the offense of delivery of the controlled substance marijuana. Prior to sentencing, Brooks made a motion requesting a new trial on the grounds the "verdict was the product of misconduct on the part of [the presiding juror, an attorney] which caused extraneous, non evidentiary, prejudicial information to be improperly brought before the jury's attention." The trial court denied the motion from the bench, and proceeded to sentence Brooks. Brooks appeals.

Brooks brings two issues on appeal; first, whether extraneous prejudicial information brought up by the presiding juror during deliberations mandates a new trial, and second, whether the contingency fee arrangement between Fargo police and informant Allen Taylor violated public policy. Holding that the statements made by the presiding juror require a new trial, we do not address the merits of the second issue.

Brooks asserts that the trial court abused its discretion in failing to grant his motion for a new trial on the basis of jury misconduct. The State does not contest the admissibility of the juror affidavits or that the statement was actually made by the presiding juror, but instead maintains the trial court's position that the statement was not misconduct and was not prejudicial because it was a statement concerning a matter of common knowledge. 1 We disagree.

Rule 33 of the North Dakota Rules of Criminal Procedure provides that criminal defendants may move for a new trial on the basis of jury misconduct. "Whether the trial court's discretion was properly exercised depends upon the facts and circumstances of each case." Keyes v. Amundson, 391 N.W.2d 602, 604 (N.D.1986) (Keyes II ). We will not set aside a trial court's denial of a motion for a new trial unless the trial court abused its discretion in denying the motion. E.g., State v. Skaro, 474 N.W.2d 711 (N.D.1991). An abuse of discretion occurs when a trial court acts arbitrarily, capriciously, or unreasonably. E.g., Smith v. Anderson, 451 N.W.2d 108, 112 (N.D.1990).

Similar to civil cases, in criminal cases when determining whether to allow a new trial the appropriate questions are whether there was misconduct, and if so, whether it could have affected the verdict of a hypothetical average jury. See Keyes v. Amundson, 343 N.W.2d 78, 85 (N.D.1983) (Keyes I ) (civil case); see also Keyes II, 391 N.W.2d at 604 (civil case restating rule in Keyes I ). In this case the trial court determined both that there was no misconduct, and that it would not taint the jury. Denying the motion for a new trial, the trial court stated "she brought into the jury room a matter of ordinary knowledge and understanding.... It does not rise to the level that would overcome the presumption that the jury acted in performance and duty with the law."

Brooks argues jury misconduct occurred as a result of statements made by the presiding juror, an attorney, during jury deliberations. Brooks submitted affidavits from two of the jurors attesting that during deliberations, the presiding juror made a comment to the other jurors to the effect that Brooks' business partner had been tried for and convicted of a drug related offense. 2 The affidavits were received in evidence and considered by the trial court without objection by the State. Although the rules of evidence restrict juror testimony, Rule 606(b) of the North Dakota Rules of Evidence provides that jurors may testify as to any matter or statement occurring during the course of the jury's deliberations if extraneous prejudicial information was improperly brought to the jury's attention. 3 See 27 Wright & Gold, Federal Practice and Procedure: Evidence Sec. 6075 at 444-45 (1990) (606(b) "pertains to the jury's consideration of facts or data not revealed in open court").

In this case, the State did not raise Rule 606(b) below or in its brief on appeal, but argues that a statement made by the presiding juror was common knowledge and not extraneous information. The purpose of Rule 606(b) is to free deliberation in the jury room by protecting from disclosure the manner in which a verdict was reached, and to promote the finality of the verdict. N.D.R.Ev. Rule 606 explanatory note. "Where a verdict is reached because of extraneous, prejudicial information or outside influence, much of the reason for disallowing a juror to testify disappears, and the balance is weighted in favor of obtaining justice in the individual case." Id. "For example, concern for fairness is clearly at its greatest where individuals attempt to influence the jury in a manner that does not permit confrontation by the adversaries." Wright & Gold, supra, at Sec. 6075 pp. 456-57.

Rule 33 of the North Dakota Rules of Criminal Procedure authorizes a new trial for any harmful juror misconduct. As a rule of evidence, Rule 606(b) does not "purport to specify the substantive grounds for setting aside verdicts for irregularity; it deals only with the competency of jurors to testify concerning those grounds." Fed.R.Evid. 606 advisory committee's note.

"As a practical matter, however, the exclusionary principle [of Rule 606(b) ] imposes what amounts to limits upon the ground of permissible impeachment of jury verdicts. That is the obvious result of a rule which significantly restricts use of the only sure source of information as to occurrences during the jury's deliberations."

3 David W. Louisell & Christopher B. Mueller, Federal Evidence Sec. 286 at 118 (1979). The fact that "extraneous prejudicial information was improperly brought before the jury's attention" is not only a proper subject for juror affidavits under Rule 606(b), it is also a form of jury misconduct warranting a new trial under Rule 33. Therefore, although the State may not have objected to the admission of the affidavits, cases applying Rule 606 are relevant to the State's argument that the presiding juror's statement was common knowledge and not "extraneous prejudicial information" constituting juror misconduct.

Although we presume the jury's verdict is right, e.g., Keyes II, 391 N.W.2d at 605, "introduction of additional outside information is beyond permissible bounds," State v. Johnson, 445 N.W.2d 337, 342 (Iowa 1989). "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907).

"When a jury considers facts in a criminal case which have not been introduced as evidence, the defendant has been deprived of the opportunity to be present when evidence is being presented, to be represented by counsel at an evidentiary proceeding during trial, to cross-examine the 'witnesses' who presented the evidence, to offer evidence in rebuttal, to request curative instructions, or to take other tactical steps, including argument to the jury, to place the evidence in perspective for the jury."

State v. Poh, 116 Wis.2d 510, 343 N.W.2d 108, 117 (1984) (juror mentioned that defendant had prior criminal record).

Because verdicts should be based on evidence presented in open court, and not upon extraneous prejudicial information, jury misconduct may occur when during deliberations jurors consider information or matters outside the evidence admitted during trial. See Keyes I, 343 N.W.2d 78 (extraneous prejudicial information reached jury); see also State ex rel. Trump v. Hott, 187 W.Va. 749, 421 S.E.2d 500 (1992) (evidence of defendant's prior wrongdoings was extrinsic); Johnson, 445 N.W.2d 337 (during deliberations, juror introduced hearsay information not admitted into evidence); United States v. Howard, 506 F.2d 865, 867 (5th Cir.1975) ("While the thirteenth century jury may have been selected precisely because of its ready familiarity with background facts, this no longer fits our conception of the jury's role. The modern juror's 'verdict must be based upon the evidence developed at the trial.' ").

"Obviously, no juror can or should approach deliberations with an entirely clean cognitive slate. Humans can make intelligent decisions only by drawing upon their accumulated background knowledge and experience." Wright & Gold, supra, at Sec. 6075 p. 450. We expect jurors to bring their experiences and commonly known facts with them. E.g., Poh, 343 N.W.2d at 113; see also Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963) (impossible standard to require jury to be a laboratory, completely sterile and free from any external factors); People v. Schmidt, 196 Mich.App. 104, 492 N.W.2d 509, 511 (1992) ("Jurors must determine the facts in the case from the evidence received at trial; they may not decide matters that are not of common knowledge or experience."). The scope of the doctrine is limited to a few matters of elemental experience in human nature, commercial affairs, and everyday life. E.g., People v. Simon, 189 Mich.App. 565, 473 N.W.2d 785, 787 (1991) (citing 9 Wigmore, Evidence (Chadbourn rev. 1976), Sec. 2570, p 728); see also State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752, 758 (19...

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